where orders emerge

Constitutional Progress

I share James Taranto’s unfavorable assessment of Yale law professor Bruce Ackerman’s political ideology (“20th Century Man,” Feb. 1). Ackerman’s “Progressivism” is a reflection of the atavistic attitude that the economy performs best when it is consciously controlled by the firm hand of a sovereign – a sovereign that, if elected democratically, can be trusted with nearly boundless powers.

But Ackerman deserves praise at least for his honesty regarding the written Constitution. In his 1991 book, We the People,* Ackerman admits that the vast powers that Uncle Sam has exercised over the economy since the New Deal are far greater than any such powers envisioned by the Constitution’s 18th-century framers. To that point Ackerman also concedes that Uncle Sam’s current long regulatory reach is at odds with the actual Constitutional text. But, says Ackerman, the “constitutional moment” that allegedly was the 1930s mobilized the electorate and top government officials to amend the Constitution in fact if not formally. It is the Constitution informally amended that Ackerman relies upon to justify Leviathan.

Of course, one is entitled to question Ackerman’s thesis that the Constitution can be amended informally (that is, without going through Article V procedures) – especially when that thesis celebrates and sanctifies formally unchecked majoritarian passions of the very sort that the Constitution’s framers feared.

Sincerely,
Donald J. Boudreaux
Professor of Economics
and
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030

* Bruce Ackerman, We the People (Cambridge: The Belknap Press of Harvard University, 1991).

Roosevelt and the New Deal Congress had not chosen to codify their new constitutional principles by enacting a few formal amendments, of the sort contemplated by Article Five. Instead, the President and Congress left it to the Justices themselves to codify the New Deal revolution in a series of transformative judicial opinions, threatening to pack the Court unless it accepted this novel constitutional responsibility. When the Justices executed their famous “switch in time” in the spring of 1937, they began to execute the task Congress and the President had assigned to it.

Why bother with formal amendment procedures when a popular president can bully the judiciary into reading the Constitution in whatever way that president wishes? The remarkable fact here, for me, is that Ackerman applauds this development. I reckon that’s progress!